The Court’s conservative majority can use the nondelegation doctrine to begin restoring our constitutional balance of powers.
One of the most important issues facing this country today was not on the ballot on Election Day, and it won’t be anytime soon: the question of whether our laws will continue to be made by Congress, as the Constitution requires, or by the administrative agencies of the executive branch, often called the “administrative state.”
Rulemaking by unelected officials subject to little congressional or judicial oversight affects the lives of Americans in profound ways, but we have failed thus far to develop an effective strategy for controlling it. In the past few years, the Supreme Court’s conservative justices have begun to focus on using the “nondelegation doctrine” to limit regulations. But the Court would need the right case to arise before it could employ that strategy — and even then, fears of political opposition could cause the Court to hold back.
The U.S. Constitution creates a government of separated powers: Congress makes the laws; the executive branch, headed by a president, enforces the laws; and the judiciary, headed by the Supreme Court, interprets the laws. Each of these three branches is required to stay within its prescribed lane, avoiding any forays onto the others’ turf. The Framers created this unusual structure for a very specific reason, laid out explicitly in The Federalist Papers: They believed that the people’s liberty would be in danger if the same person or group had both the power to make the laws and the power to enforce them. In Federalist No. 47, for example, Madison wrote that “there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.”
To prevent this from happening, the Framers gave the judiciary the exclusive power to interpret the Constitution and the laws passed by Congress, so if one of the other branches began to move outside its constitutionally defined territory, the courts would be able to step in and stop it.
In Federalist No. 78, Hamilton said that the courts were the “Guardians of the Constitution,” and that federal judges were given lifetime tenure so they wouldn’t fear taking on the elected branches when necessary. “It is easy to see,” he wrote, “that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution” if either Congress or the executive branch were to violate or subvert the Constitution’s provisions.
Progressives’ Push for Administrative Power
The Framers thought Congress would be the most powerful of the three constitutional branches, and they were correct, at least for the first 150 years of our country’s history. But the balance of power began to shift in the late 19th century, with the development of a bipartisan progressive movement led by Woodrow Wilson and Theodore Roosevelt. Economic growth after the Civil War had resulted in the development of powerful corporate interests, and heavy immigration from the South and Europe had produced widespread poverty in America’s cities. The progressives wanted the government to bring these problems under control through regulation of the economy.
The speeches and writings of Wilson and Roosevelt made clear that they both favored major changes in the constitutional structure. They sought to remake the Constitution into a framework that would change as the problems of the country changed; Wilson called the government a “living thing,” just as today’s progressives refer to a “living Constitution” that can and should be changed by judicial interpretation or congressional action as the views and moral sentiments of the American people evolve.
Wilsonian progressives’ solution to the country’s problems was to create agencies with specific responsibilities for regulating or supervising various sectors of the private economy. Their ideal was an economy guided by disinterested, university-trained, credentialed experts who would diagnose and treat the problems associated with powerful conglomerations of business and finance: low wages, long hours, unemployment, labor conflict, deflation, and so on. In 1887, Congress established the first major regulatory agency, the Interstate Commerce Commission, to regulate the railroads. Then came other new government agencies — the Food and Drug Administration in 1906, the Federal Reserve in 1913 — as well as the passage of the Clayton Antitrust Act in 1914.
All of this modest government growth was, of course, just a prelude to the revolution that followed Franklin D. Roosevelt’s election in 1932. Roosevelt, seizing on the political opening provided by the intractable Great Depression, put the growth of the administrative state into overdrive.
Under Roosevelt, more powers were given to cabinet agencies such as the Departments of Commerce, Labor, and Health and Human Services, and more independent agencies such as the SEC, the FCC, and the FTC were created. All these agencies were authorized to issue regulations that were, in effect, laws binding on the American people. In an 1825 case, Wayman v. Southard, Chief Justice Marshall had ruled that Article I of the Constitution, which “vested” all legislative power in Congress, required only that Congress make the “important” decisions in any legislation; matters of “less interest” could be left to others in the executive branch, who would “fill in the details.” It was on this foundation that administrative agencies could be authorized to carry out the laws enacted by Congress.
In the throes of the New Deal, however, the laws enacted by Congress frequently went beyond the modest bounds Chief Justice Marshall had set in Wayman. Often, Congress would leave the most important decisions in executing legislation to an administrative agency or to the president. If this continued, it would create exactly the problem that Madison had seen as a danger to liberty: the executive branch’s accumulation of the power to both make the laws and enforce them. So in 1935, the Supreme Court — recognizing the clear threat posed to the constitutional separation of powers — finally stepped in.
In two cases that year, the Court declared that Congress had unconstitutionally delegated its legislative power to the president. In the first case, Panama Refining v. Ryan, the president had been authorized to prohibit the transportation of oil across state lines, but, the Court found, Congress had provided “no criteria to govern the President’s course.” In effect, the executive had been given the authority to operate without restraint — the essence of legislative power. The second case, more familiar to law students, was A.L.A. Schechter Poultry v. U.S., and arose out of the National Industrial Recovery Act, which permitted companies to join together — with the approval of the president — to fix prices and the rules of fair competition. Again, the Court found no standards in the NIRA that might impose some restraint on the president’s discretion, leaving him with the absolute power that the Constitution had reserved for Congress.
This was the culmination of many cases in which the Court had opposed Roosevelt’s initiatives, and he didn’t intend to take the slight lying down. In 1936, he won a landslide reelection victory, and the Democrats gained supermajority control of both the House and Senate. To punish the Court for ruling against him in Panama Refining and Schechter Poultry, among other cases, Roosevelt proposed a Court-packing plan to Congress that would have allowed him to appoint seven additional justices and thereby given him control of the Court.
Fortunately, the public opposed the idea, and it did not pass Congress, but the episode proved that Hamilton was right: The Supreme Court needs a lot of fortitude to challenge one of the elected branches. And in truth, this Court didn’t have it. After the Court-packing fight, the Court began to reverse itself and the justices of 1935 began to retire. By 1941, Roosevelt had appointed every sitting justice, ushering in a Court that would eventually approve virtually all of the New Deal. The precedents created as a result have prevented the Court from challenging the powers of the administrative state until today.
Indeed, the Court has been willing to give administrative agencies extraordinary discretion over the years. In one particularly important decision, Chevron v. Natural Resources Defense Council (1984), the Court unanimously declared that lower courts must defer to administrative agencies’ interpretations of their own power, provided these interpretations were “reasonable.” Chevron has since become one of the most-cited of all Supreme Court decisions and has immeasurably increased the power of the administrative state.
The Dangers of Administrative Growth
Today, imbued with the ability to interpret how much authority they have been given by Congress, administrative agencies continue to grow in number and power. There isn’t any reliable list of the thousands of agencies that currently exist. But we do know how many rules and regulations are issued each year, because in 1993, Wayne Crews of the Competitive Enterprise Institute began to count them. By 2018, Crews had recorded 101,000 new regulations, more than 3,000 per year. That startling statistic should make it clear that the real lawmakers in the U.S. government don’t reside in Congress, as the Constitution requires, but in the thousands of small and large bureaucratic fiefdoms of the executive branch.
If the administrative state continues to grow, it won’t be long before the American people will recognize that elections don’t really change anything, because the real and binding laws are being made and enforced by a faceless bureaucracy that no one seems able to control. And when this recognition dawns, it will be a very dangerous moment for the country, comparable in some ways to the moment that produced Brexit. There were many reasons for Britain’s vote to leave the EU, but one of the most important was the conclusion of many Britons that they did not have any significant ability to control the hundreds of binding EU regulations coming out of Brussels. In effect, the EU lost its legitimacy as a rulemaking body among the people of Britain.
Absent steps taken to curb the agencies of the U.S. administrative state, over which the American people probably already believe they have no control, our federal government could also face the threat of losing its popular legitimacy. To prevent this from happening, we must find a way to return lawmaking power to Congress, where it belongs — and keep it there. Only then will the American people agree that they control their government.
The Nondelegation Doctrine
Fortunately, there is a way to restore the proper constitutional separation of powers.
The principal reason that so much power has flowed to the agencies of the administrative state is that Congress has for many years failed to make the tough decisions that are part of legislating. Instead, it has grown comfortable merely setting goals for administrative agencies — such as achieving clean air or clean water — without specifying how those goals should be achieved. In the end, this means that members of Congress are not accountable to their constituents for what administrative agencies do.
We can’t expect lawmakers to suddenly become courageous; the political incentive to avoid their constitutional responsibility is just too strong. What is instead necessary is something that will force Congress to make the tough decisions that a legislature must make in governing a democratic society.
As difficult as it may seem, there is a legal theory that could accomplish this. It is called the “nondelegation doctrine,” and it holds that Congress cannot delegate its legislative powers to the president or the executive branch. The theory has been validated only twice by the Supreme Court, in the two 1935 cases, Panama Refining and Schechter Poultry, discussed earlier. But at least five conservative justices on the current Court have expressed support for it, and originalist conservative Amy Coney Barrett, the newest member of the Court, is likely to add a sixth to their ranks.
Given the Framers’ view that the separation of powers is essential to maintaining the peoples’ liberties, the idea that Congress could not delegate its legislative responsibility to any other branch, including the agencies of the executive branch, must be true. Otherwise, one of the central purposes of the Constitution — to keep any one person or group from having both the power to make and to enforce the laws — will be tossed aside.
By adopting this position in a future case, the Court could immediately force Congress to begin taking its legislative responsibilities seriously. Lawmakers would have to specify more exactly what they expect and authorize a particular agency to do, and the agency would no longer have the discretionary authority to go beyond the letter of the law.
The nondelegation doctrine is not a quick and easy fix for the problem — it will take years of consistent effort by the Court to define the contours of legislative authority — but it seems the only realistic way to arrest the gradual slide of our government into the hands of the administrative state. If it is not invoked by the current Court, we may face a future in which all the rules Americans have to obey are made not by our elected representatives, but by the unaccountable administrative bureaucracies of the federal government — a future everyone who loves this nation and its liberties should shudder to contemplate.